What are secret holds, and why ban them?

Outside of the arcane world of the U.S. Senate, a “secret hold” sounds like something one learns either as a member of a clandestine Ivy League fraternity or as a trainee in the World Wrestling Association. Of course, under the rules of the Senate, it’s neither. But the Senate’s version of the secret hold is, in many ways, equally mysterious and possibly more nefarious. And after many years of tolerating secret holds, two U.S. Senators, Ron Wyden (D-OR), and Charles Grassley (R-IA), are trying to release the Senate from their grip and make the legislative process more transparent. That’s why the two Senators have introduced the Secret Hold Elimination Act.

What’s a secret hold?

For those of us not steeped in the intricacies of Senate rules, the notion of a secret hold may need some explanation. Under Senate rules, any motion to proceed on a bill has to have unanimous consent. So, if a Senator objects to the motion to move forward, the motion fails to get unanimous consent, and it’s stopped indefinitely. In practice, the mechanism for preventing a motion from reaching a vote is to put a hold on it. One way to hold a motion is by objecting to it openly on the Senate floor. But the rules also allow Senators to privately notify party leadership of their objection, and remain anonymous. That’s a secret hold.

The original intent of holds was to protect a Senator’s right to be consulted on legislation that affected the Senator’s state or that he/she had a great interest in. The ability to place a hold would allow that Senator an opportunity to study the legislation and to reflect on what it means before moving forward with further debate and voting.

So, what’s the problem?

The only way to override a hold is by cloture, which requires 60 votes. And anyone who follows politics in 2010 knows that getting 60 votes is far from a slam-dunk. So, in effect, any Senator—acting anonymously through a secret hold—can hold up any piece of legislation indefinitely—whether of monumental importance or trivial—for any reason, which does not have to be disclosed. It doesn’t take a lot of imagination to see how, in the extreme partisanship of the 111th Congress, secret holds can be powerful weapons that allow Senators to do damage to the legislative agenda without taking public responsibility for their actions.

Secret holds have been around since the mid-19th Century, and both Democrats and Republicans have used them. In recent years, however, abuses of the procedure have multiplied, crippling the Senate’s ability to do its work, and blocking many Presidential appointments that require Senate approval. Often, Senators impose secret holds as a bargaining tactic to extract concessions from party leadership or from the opposition.

Hilda Solis’s nomination hearing to become President Obama’s Secretary of Labor

The passage of a veterans health care bill

The confirmation of two of President Obama’s science-related nominees – who were apparently held by a senator protesting (of all things) the Obama administration’s Cuba policy.

Banning secret holds

Over the years, Senators and government-transparency advocates have made many attempts to abolish the secret hold, with little success. In 1997, the Senate passed a ban, but legislators found a way around it. Ironically, even a 2006 bill designed to create more transparency in government was itself detoured by secret holds. A more hopeful development was the Honest Leadership and Open Government Act (HLOGA), which passed in 2007. Unfortunately, critics say that the well-intentioned act passed in a watered-down state, with little in the way of real enforcement, and its provisions have been notoriously ignored.

Now, Senators Wyden and Grassley are trying again. Both have been known to place holds on legislation, but theirs are done in the open. Both have a long-standing practice of making all of their holds public by placing formal statements announcing and explaining their holds in the Congressional Record. In a joint press release about their new bill, Wyden said:

This is about fundamental accountability and fairness. If Senators feel strongly enough about an issue that they are going to take the extreme step of blocking a nomination or a piece of legislation, then they should have the courage to take responsibility for their actions and explain why. The bottom line is that if you can’t make a good public case for why you are doing something, you shouldn’t be doing it. It’s far past time that the Senate stop operating in the shadows and let sunlight do its job. This legislation ensures that no amount of procedural stalling will stop Senate holds from being made public quickly.

If past is predictor, this piece of legislation faces an uphill battle, and we can expect to see the usual behind-the-scenes maneuvering to block it or weaken it. However, recent actions by some Senators may offer some hope. Sen. Claire McCaskill (D-MO), for example, recently stepped up to the Senate podium and called out the names of 18 of President Obama’s judicial nominees, calling for unanimous consent and basically demanding that the Senator keeping the holds admit that they were doing so. (Jon Kyl (R-AZ) took responsibility for them.) McCaskill promised to do this for every outstanding Obama Administration nominee. Perhaps her actions, and those of others, will help to erode traditional complicity in the secret ways of the US, and some sunlight may be allowed to enter the chamber.